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Teaching Law, For Real

Lawprof Brian Clarke raised another dirty little law school secret problem at the Faculty Lounge that implicated an issue that non-academics have long pondered: what’s so horrible about real world experience? He questioned why significant practice experience was not valued in tenure track professors:

I was unpleasantly surprised by the prevailing wisdom regarding practice experience when I went to the meat market in 2010. Back then the conventional wisdom seemed to be as follows: Ideal: zero to 3 years of practice; Acceptable: 3-5 years of practice; Potentially Disqualiying: more than 5 years of practice up to 10 years of practice; Disqualifying: more than 10 years of practice.

This is not an absolute rule, there always being an exception (like Suffolk Law’s Jeff Lipshaw, who practiced 26 years), but it’s certainly the general rule. They’ve even got derogatory expressions to characterize it, “retiring to teach” being a description to suggest that old guys want to ease out of the hard work in the trenches to the cushy job in the Ivory Tower to spend their last years making big bucks while telling war stories to kids.

This issue has taken on added relevance over the last year or more given the changes taking place in legal education and in the larger legal economy. (See, for example, this post from PrawfsBlawg, and this one and this one from Conglomerate, this one and this one from ProfessorBainbridge, and, of course, a vast number of message board comments [including some on the foregoing posts]). There is a greater focus on the need for experiential education for all law students (due to ABA mandates and otherwise) and on the aspiration that law schools produce something close to “practice ready” lawyers.

Use of phrases like “practice ready” reveal how little connection academics have to reality. No one will ever leave law school “practice ready,” which doesn’t mean that schools can’t provide reality-based instruction, so practice doesn’t smack new lawyers in the face with its practical demands and expectations that they can perform basic tasks required of a lawyer.

The fantasy world of scholars, as if cases magically appear on a lawyer’s doorstep with sanitized facts and none of the insanity brought by the human beings involved, so they can march straight to the Supreme Court and argue black letter law, where brilliant judges ponder nuanced philosophical questions while allowing them to argue points about which they are deeply passionate, doesn’t exist. Who will tell them this? A lawprof who has never seen the inside of a courtroom lacks the equipment to teach reality.

But then, the faculty admires scholars, not teachers. Lipshaw questions whether this is a false dichotomy, suggesting that experienced lawyers don’t have to be intellectual midgets, good only to tell war stories. He notes that experience degrades over time, leaving the once-experienced practitioner more akin to the theoretical scholar 20 years later, which is partially true (assuming we live that long and things change that much), but more importantly, that if an experienced practitioner doesn’t mind starting over as a rookie scholar, there is room for him in the legal academy.

While Clarke’s concern is quite correct in that a professor without experience can at most pretend to give practical instruction, as it appears to them from the position of ignorance (they, of course, don’t believe this to be true, but that’s a product of inexperience, denial and defensiveness), and is therefore unqualified to produce “something close to ‘practice ready’ lawyers,” there are other questions that can’t be ignored.

Based on my time teaching trial practice to law students, two primary issues keep repeating themselves. The first is that many law students aren’t ready to learn how to be a lawyer. Too many are delicate flowers, years of entitlement making them believe they get a vote in how the real world functions. They don’t, but whatever you do, don’t tell them so. They will not only be irate at anyone questioning them, but anything less than praise and adoration is seen as attack and bullying. They are too soft and arrogant to be lawyers. Yet.

A second pervasive problem is that the practice of law isn’t neat and clean, as it appears from casebooks and Supreme Court opinions. Some students love to learn the tricks of the trade. Some abhor it, seeing it as somehow dirty and “wrong,” as if the battle in the trenches should play out like platitudes for the foolish. They suffer from deeply confused ethical quandaries because they can’t separate their own self-interest from their duty. The concept of duty to others is entirely foreign to them, having spent their lives concerned only with what’s good for them.

As for being a rookie scholar, Lipshaw is correct that few of us could do it. Not that we’re not sufficiently interested in the “life of the mind,” but we’re tainted by experience. Watching too much pain pass through our lives makes it impossible to write law review articles of utter inconsequence. And writing to persuade judges not to destroy lives makes it impossible to use the florid and obtuse language of the academy, using 100 words where one will do, or ten syllables in place of two. After 30 years of trying to write comprehensibly, how am I supposed to crank out law review articles designed to bore the most pedantic dilettante?

But to dismiss experienced lawyers as teachers because all we would do is tell kids war stories is facile. Sure, we have stories to emphasize a point, or perhaps bring a little interest into the classroom and give life to what these students plan to do for the rest of their lives. But we’re no more self-indulgent wastrels seeking a captive audience for our lazy (but well-paid) efforts than unadmited, inexperienced (in law and life) law professors are self-indulgent scholars writing worthless screed to fill the empty pages of ignored law reviews.

There is a place for all of this, experience and scholarship, teaching reality and thinking theoretically. We would all be better off if we recognized the benefits to be gained from ending the binary view of how law school should be. And we would all better serve students by bringing them around to grown-ups, prepared to be lawyers (not “practice-ready,” but ready to practice), by disabusing them of the childish notion that they’ll be handed a red balloon for showing up. We owe them better before sending them out into the world. We owe clients better before letting these students near them. We all need to do better.

P.S. Yesterday, I learned of PrawfsBlawg’s founder, FSU criminal law professor Dan Markel’s tragic death, having been shot when he opened the door of his home in Tallahassee, Florida. He leaves behind two young sons who will be denied a loving father. I knew Dan from his blog and his writings, and a couple of interactions online. Not well enough to claim to be friends. This was a senseless, horrible tragedy.

Much as practitioners and academics hurl snark across the divide between us, there are times when we need to realize that we are playing different positions in the same game, if not on the same team. We may be opponents, but we are not enemies. Most of our arguments are about nuance, maybe even trivia. Perhaps we fight too hard, disagree too much.

The death of a young and exceptionally well-regarded scholar like Dan reminds us that for all the in-fighting, there is far more that binds us together than separates us. When a tragedy like this happens, it should clear the air of trivial disagreements and give us pause to appreciate what Dan Markel gave to the profession. Teaching law doesn’t get any more real than this.

You used to (still are?) teach law? I didn’t know that. Is it wrong that now I’m imagining a law prof telling his students, “Welcome to your first class with me. I’m Professor Greenfield, and Welcome to hell.“

What if law professors are just using “practice ready” in a way different from your understanding?

It’s not what they’re ready to provide, but what they’re ready to receive. Students will never graduate “practice ready” in the sense that they can competently handle client matters. But they can graduate “practice ready” in the sense that they’re ready to begin learning from real world legal practice.

That may be, but then, if that’s what’s meant by “practice ready,” they’re working with a very different definition than the rest of us. Maybe “learning ready,” but that would be a really lousy selling point for law school.

Hardly professor, but nothing gave me more insight into the good, the bad and the ugly of being in a room filled with law students than this. Half I wanted to hire. The other half made me wish I carried a roll of dimes.

The degree of arrogance and entitlement astounded me. I don’t know how you deal with it.

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Scott H. Greenfield

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